Common use of Design Phase Fee Clause in Contracts

Design Phase Fee. If Owner specifies that the Construction Manager engage in extensive participation in Design Phase Services as set forth herein and for profit and overhead related to these services, a total fee of Fee Amount
The Design Phase Fee shall be paid in two (2) equal monthly payments of Fee Amount
each. If the Design Phase is completed in less than two (2) months, the unpaid balance of the aforesaid Design Phase Fee shall be paid thirty (30) days after completion of all Design Phase Services. The first monthly payment shall become due thirty (30) days following the issuance of Notice to Proceed with the Design Phase Services. The Construction Manager’s personnel to be assigned during this phase and their duties and responsibilities to this project and the duration of their assignments as agreed to in writing by the parties. Construction Phase Fee - Prior to commencement of the Construction Phase, the Owner will direct the Construction Manager in writing to proceed into the Construction Phase. The Construction Manager ’s compensation for all Work and services performed during the Construction Phase shall be determined in the GMP Amendment (however, the Owner retains the right to review the need and effectiveness of any employee or employees, and the Construction Phase Fee shall be reduced accordingly, if fewer hours and/or employees are utilized). The Construction Phase Fee shall be paid proportionally to the ratio of the cost of the Work in place, excluding stored materials and less retainage (see paragraph 12.1), as it bears on the latest estimate of the total construction cost, or to the GMP, or to the Owner’s Construction Budget, whichever is least. The first monthly payment shall become due thirty (30) days following the issuance of the first Construction Authorization by the Project Director and the final monthly payment shall be paid thirty (30) days after construction of the Project is finally completed and occupancy of the Project is accepted by the Owner. If construction is authorized only for a part of the Project, the fee paid shall be proportionate to the amount of Work authorized by the Owner. Adjustments in Fee - For changes in the Project as provided in Article 10, the Construction Phase Fee shall be adjusted as follows: The Construction Manager shall be paid an additional fee subject to negotiation if the Construction Manager is placed in charge of reconstruction of an insured or uninsured loss, excluding any condition that may have been caused by any act or omission of the Construction Manager or by anyone for whom the Construction Manager is responsible (i.e. subcontractors, sub-subcontractors, etc.). Any and all provisions of the Contract Documents to the contrary notwithstanding, in the event that the Construction Manager is at any time delayed, hindered or impeded in the performance of the Work by any cause whatsoever, including, but not necessarily limited to, any conflict or inconsistency between or amongst any of the Contract Documents; any act of God; any work performed by others which may affect or impact upon the Work; any act or failure to act on the part of any governmental agency or authority having jurisdiction, or purported jurisdiction, over any part of the Project; any act or omission on the part of the Owner or any of the Owner’s employees, agents, servants, representatives or consultants, including, but not limited to, the Architect-Engineer; and/or any other natural or man-made act, omission or force majeure (including, but not limited to, by any cause beyond the control or legal responsibility of the Construction Manager ), and, in any and all such events (excepting only active, intentional interference with the Work by the Owner), the Construction Manager acknowledges and agrees that the Construction Manager shall not be entitled to any adjustment in the Construction Phase Fee, to any increase in the Guaranteed Maximum Price, to any increase in the Overhead and Profit for the Construction Phase described in paragraph 8.1.3 below, or otherwise entitled to any additional compensation, reimbursement or damages of any kind whatsoever, as a result or consequence thereof; provided, however, that if any such delay, hindrance or impedance of the Work is occasioned by any cause not the fault of the Construction Manager (or any person or entity for whom the Construction Manager is responsible), in whole or in part, and not otherwise within the Construction Manager’s control or legal responsibility, such delay, hindrance or impedance may entitle the Construction Manager to, as the Construction Manager’s sole and exclusive remedy in relation thereto, an extension of the Contract Time, provided that the Construction Manager applies for the same in the manner provide in the Contract Documents. Under such circumstances, before the Construction Manager may seek such an extension in the Contract Time, the Construction Manager must have first provided documentation to the other members of the Construction Team that the Construction Manager has been delayed by causes beyond the control or responsibility of the Construction Manager and/or any person or entity providing any labor, services and/or materials by, through or under the Construction Manager , directly or indirectly, for a total of ten (10) days, which ten (10) days caused a ten (10) day delay in the critical path of the Work. Such documentation shall be provided by the Construction Manager to the other members of the Construction Team within two (2) days of each event giving rise to a claim for each day’s delay in the critical path of the Work, or the Construction Manager shall be deemed to have waived the claim as to each day for which such documentation is not timely delivered. Subject to the provisions of this Agreement, the determination of the Construction Manager’s entitlement to delay days (both the initial ten (10) days and any days of delay beyond the initial ten (10), if applicable) shall then be determined in writing by the Owner. To the extent that the Owner initiates Change Orders, or otherwise agrees to Change Orders involving extensions of the Contract Time for which the Owner also expressly agrees in writing in such Change Orders to compensate the Construction Manager for such extensions of the Contract Time (or portions thereof), and also including any additional compensation for time extensions due to any active, intentional interference with the Work by the Owner, if the same is found to have occurred, the Owner and Construction Manager hereby agree that the Construction Manager ’s Additional Construction Phase Fee will be no more than $800.00 per working day, for each day (or portion thereof on a prorate, proportioned basis). It is anticipated that the Construction Manager’s staff during such time extensions will be reduced as otherwise agreed to in writing between the parties. The Construction Manager’s Additional Construction Phase Fee of up to $800.00 per day shall be a maximum, not to exceed amount, with the actual charge to the Owner for such additional days as are allowable being the actual cost to the Construction Manager of the on-site personnel required to finally complete the Project (up to the maximum, not to exceed amount of $800.00 per day). The Owner retains the right to review the need and effectiveness of any employee or employees assigned by the Construction Manager during any such time extension, should the Project Director question the need for the employee or employees, and the Construction Manager’s Additional Construction Phase Fee (in the maximum, not to exceed amount of $800.00 per day) shall be reduced accordingly, if fewer hours and/or employees are utilized. The Construction Manager will not be due any additional Overhead and Profit on increases in the Guaranteed Maximum Price (GMP) established in the GMP Amendment (i.e., the original GMP) that does not exceed $200,000.00. Should the GMP established in the GMP Amendment (i.e., the original GMP) be increased by more than $200,000.00 under the terms of Article 10 below due to no fault of the Construction Manager, the Construction Manager’s additional Overhead and Profit for the Construction Phase will be five (5%) percent of that portion of the cumulative increases in the GMP established in the GMP Amendment (i.e., the original GMP) that exceed such original GMP by more than $200,000.00.

Design Phase Fee. If Owner specifies that the Construction Manager engage in extensive participation in Design Phase Services as set forth herein and for profit and overhead related to these services, a total fee of Fee Amount
Amount The Design Phase Fee shall be paid in two (2) equal monthly payments of Fee Amount
Amount each. If the Design Phase is completed in less than two (2) months, the unpaid balance of the aforesaid Design Phase Fee shall be paid thirty (30) days after completion of all Design Phase Services. The first monthly payment shall become due thirty (30) days following the issuance of Notice to Proceed with the Design Phase Services. The Construction Manager’s personnel to be assigned during this phase and their duties and responsibilities to this project and the duration of their assignments as agreed to in writing by the parties. Construction Phase Fee - Prior to commencement of the Construction Phase, the Owner will direct the Construction Manager in writing to proceed into the Construction Phase. The Construction Manager ’s compensation for all Work and services performed during the Construction Phase shall be determined in the GMP Amendment (however, the Owner retains the right to review the need and effectiveness of any employee or employees, and the Construction Phase Fee shall be reduced accordingly, if fewer hours and/or employees are utilized). The Construction Phase Fee shall be paid proportionally to the ratio of the cost of the Work in place, excluding stored materials and less retainage (see paragraph 12.1), as it bears on the latest estimate of the total construction cost, or to the GMP, or to the Owner’s Construction Budget, whichever is least. The first monthly payment shall become due thirty (30) days following the issuance of the first Construction Authorization by the Project Director and the final monthly payment shall be paid thirty (30) days after construction of the Project is finally completed and occupancy of the Project is accepted by the Owner. If construction is authorized only for a part of the Project, the fee paid shall be proportionate to the amount of Work authorized by the Owner. Adjustments in Fee - For changes in the Project as provided in Article 10, the Construction Phase Fee shall be adjusted as follows: The Construction Manager shall be paid an additional fee subject to negotiation if the Construction Manager is placed in charge of reconstruction of an insured or uninsured loss, excluding any condition that may have been caused by any act or omission of the Construction Manager or by anyone for whom the Construction Manager is responsible (i.e. subcontractors, sub-subcontractors, etc.). Any and all provisions of the Contract Documents to the contrary notwithstanding, in the event that the Construction Manager is at any time delayed, hindered or impeded in the performance of the Work by any cause whatsoever, including, but not necessarily limited to, any conflict or inconsistency between or amongst any of the Contract Documents; any act of God; any work performed by others which may affect or impact upon the Work; any act or failure to act on the part of any governmental agency or authority having jurisdiction, or purported jurisdiction, over any part of the Project; any act or omission on the part of the Owner or any of the Owner’s employees, agents, servants, representatives or consultants, including, but not limited to, the Architect-Engineer; and/or any other natural or man-made act, omission or force majeure (including, but not limited to, by any cause beyond the control or legal responsibility of the Construction Manager ), and, in any and all such events (excepting only active, intentional interference with the Work by the Owner), the Construction Manager acknowledges and agrees that the Construction Manager shall not be entitled to any adjustment in the Construction Phase Fee, to any increase in the Guaranteed Maximum Price, to any increase in the Overhead and Profit for the Construction Phase described in paragraph 8.1.3 below, or otherwise entitled to any additional compensation, reimbursement or damages of any kind whatsoever, as a result or consequence thereof; provided, however, that if any such delay, hindrance or impedance of the Work is occasioned by any cause not the fault of the Construction Manager (or any person or entity for whom the Construction Manager is responsible), in whole or in part, and not otherwise within the Construction Manager’s control or legal responsibility, such delay, hindrance or impedance may entitle the Construction Manager to, as the Construction Manager’s sole and exclusive remedy in relation thereto, an extension of the Contract Time, provided that the Construction Manager applies for the same in the manner provide in the Contract Documents. Under such circumstances, before the Construction Manager may seek such an extension in the Contract Time, the Construction Manager must have first provided documentation to the other members of the Construction Team that the Construction Manager has been delayed by causes beyond the control or responsibility of the Construction Manager and/or any person or entity providing any labor, services and/or materials by, through or under the Construction Manager , directly or indirectly, for a total of ten (10) days, which ten (10) days caused a ten (10) day delay in the critical path of the Work. Such documentation shall be provided by the Construction Manager to the other members of the Construction Team within two (2) days of each event giving rise to a claim for each day’s delay in the critical path of the Work, or the Construction Manager shall be deemed to have waived the claim as to each day for which such documentation is not timely delivered. Subject to the provisions of this Agreement, the determination of the Construction Manager’s entitlement to delay days (both the initial ten (10) days and any days of delay beyond the initial ten (10), if applicable) shall then be determined in writing by the Owner. To the extent that the Owner initiates Change Orders, or otherwise agrees to Change Orders involving extensions of the Contract Time for which the Owner also expressly agrees in writing in such Change Orders to compensate the Construction Manager for such extensions of the Contract Time (or portions thereof), and also including any additional compensation for time extensions due to any active, intentional interference with the Work by the Owner, if the same is found to have occurred, the Owner and Construction Manager hereby agree that the Construction Manager ’s Additional Construction Phase Fee will be no more than $800.00 per working day, for each day (or portion thereof on a prorate, proportioned basis). It is anticipated that the Construction Manager’s staff during such time extensions will be reduced as otherwise agreed to in writing between the parties. The Construction Manager’s Additional Construction Phase Fee of up to $800.00 per day shall be a maximum, not to exceed amount, with the actual charge to the Owner for such additional days as are allowable being the actual cost to the Construction Manager of the on-site personnel required to finally complete the Project (up to the maximum, not to exceed amount of $800.00 per day). The Owner retains the right to review the need and effectiveness of any employee or employees assigned by the Construction Manager during any such time extension, should the Project Director question the need for the employee or employees, and the Construction Manager’s Additional Construction Phase Fee (in the maximum, not to exceed amount of $800.00 per day) shall be reduced accordingly, if fewer hours and/or employees are utilized. The Construction Manager will not be due any additional Overhead and Profit on increases in the Guaranteed Maximum Price (GMP) established in the GMP Amendment (i.e., the original GMP) that does not exceed $200,000.00. Should the GMP established in the GMP Amendment (i.e., the original GMP) be increased by more than $200,000.00 under the terms of Article 10 below due to no fault of the Construction Manager, the Construction Manager’s additional Overhead and Profit for the Construction Phase will be five (5%) percent of that portion of the cumulative increases in the GMP established in the GMP Amendment (i.e., the original GMP) that exceed such original GMP by more than $200,000.00.